Allowed

Shabeer Kaithavalappil v. the State of Kerala

Kerala HC9 Dec 2020CRL.A/678/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against the dismissal of a pre-arrest bail plea. The court found that the allegations in the impugned order were vague regarding the manner of insulting the victim by caste name and did not establish a prima facie case to invoke the bar under Section 18A(2) of the SC/ST (POA) Act.

What did the court decide?

Appellants released on bail on executing bond for Rs.25,000/- each with two solvent sureties for the like amount; directed to appear monthly.

Shabeer Kaithavalappil Vs the State of Kerala — Caste Atrocities | Kerala HC (2020)

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Crl.A.678/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942

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CRL.A.No.678 OF 2020

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AGAINST THE ORDER/JUDGMENT IN CRL.MP (TEMPORARY).103/2020 DATED 19-08-2020 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI

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CRIME NO.402/2020 OF Changaramkulam Police Station , Malappuram

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APPELLANT/S:

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1 SHABEER KAITHAVALAPPIL AGED 41 YEARS S/O. KUNJIMON, KAITHAVALAPPIL HOUSE, KOKKOOR P.O, CHANGARAMKULAM, MALAPPURAM DISTRICT.

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2 ZAKEER K.K, AGED 42 YEARS S/O. KUNJUMON, KAITHAVALAPPIL HOUSE, KOKKOOR P.O, CHANGARAMKULAM, MALAPPURAM DISTRICT.

SHAMNAS,

AGED 18 YEARS

S/O. SHAKEER KAITHAVALAPPIL, KAITHAVALAPPIL HOUSE, CHALISSERIROAD, NANNAMMUKKU, KOKKUR P.O, CHANGARAMKULAM, MALAPPURAM DISTRICT.

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BY ADV. SRI.K.RAKESH

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031

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2 ADDL.R2 VELAYUDHAN S/O CHANGAN, MADATHUMPURAM, KOKKOOR P.O, CHANGARAMKULAM, MALAPPURAM DISTRICT, PIN-679591.

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IS IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 8/9/2020 IN CRL.MA 1/2020.

OTHER PRESENT:

Crl.A.678/2020

R1 BY SR.PP.AMJAD ALI

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Crl.A.678/2020

V.G.ARUN, J.

CRL.A.No. 678 of 2020

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Dated this the 9^th day of December, 2020

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JUDGMENT

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Appellants are the accused in Crime No.402 of 2020, registered at the Changaramkulam Police Station for offences punishable under Sections 448, 506 read with 34 of IPC and Sections 3(1)(r), 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 1989 (for short, 'the Act'). The crime is registered on a complaint submitted by the additional 2^nd respondent that on 20.7.2020 at about 6.30 p.m., the appellants trespassed into his house armed with weapons, intimidated him and insulted him by calling his caste name. The appellants approached the Special Court for SC/ST (POA) Act & NDPS Act Cases, Manjeri, seeking pre-arrest bail. The application was dismissed by the impugned order, finding that in view of the bar under Section 18A(2) of the Act. Hence, the appeal.

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Heard Sri.Rakesh K., learned counsel for the appellants and Sri. Amjad Ali, learned Senior Public Prosecutor. Despite being served with notice, the 2^nd respondent has not entered appearance.

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Learned counsel for the appellants submitted that the alleged victim/2^nd respondent respondent is the appellants' neighbour and a problem maker. Annexure C is the FIR in a crime registered against the

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Crl.A.678/2020

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2^nd respondent at the instance of the 2^nd appellant's wife, for offences under Sections 447, 354A, 506, 509 read with 34 of IPC. It is submitted that the complaint leading to Annexure A FIR is only a counterblast to Annexure-C. The incident alleged in the complaint had never occurred. It is contended that, even going by the averments in Annexure A statement given by the 2^nd respondent, the alleged offences are not made out. Relying on the decision in Bineesh and Others v. State of Kerala [2020(1) KLT 328], it is contended that in order to attract the offences under Sections 3(1)(r) and 3(1)(s) of the Act, there must be an allegation that the caste name should have been shouted in public view. According to the learned counsel, there is no such allegation in the FIS.

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I find substantial force in the contentions urged by the learned counsel for the appellants. It is doubtful as to whether the allegations would attract the offences under Sections 3(1)(r) and 3(1)(s) of the Act. According to the version of the 2^nd respondent, the appellants had insulted him by calling his caste name. The manner in which the caste name was uttered and the place from where it was uttered, is not specified. Even as regards the offences under the Indian Penal Code, the allegations are vague. All that is stated in the impugned order is that there are prima facie materials alleging the offences. Anticipatory bail cannot be denied based on such a finding. Section 18A(2) would apply only if the court finds that the materials on record makes out a

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Crl.A.678/2020

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prima facie case against the accused.

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In the result, the criminal appeal is allowed and the investigating officer in Crime No.402 of 2020 of Changaramkulam Police station is directed to release the appellants on bail, in the event of their arrest, on the appellants executing bond for Rs.25,000/- (Rupees Twentyfive Thousand only) each with two solvent sureties for the like amount. The appellants shall report before the investigating officer on the first Monday of every month, for three months or till the final report is filed, whichever is earlier.

Sd/-

V.G.ARUN, JUDGE

vgs

Crl.A.678/2020

APPENDIX

PETITIONER'S/S EXHIBITS:

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ANNEXURE A TRUE COPY OF THE F.I.R IN CRIME NO. 402/2020 OF THE CHANGARAMKULAM POLICE STATION DATED 21.7.2020. ANNEXURE B TRUE COPY OF THE ORDER IN B.A. NO. 4594/2020 OF THIS HON'BLE COURT DATED, 6.8.2020. ANNEXURE C TRUE COPY OF THE F.I.R IN CRIME NO. 405/2020 OF THE CHANGARAMKULAM POLICE STATION DATED 21.07.2020.

Shabeer Kaithavalappil v. the State of Kerala

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Shabeer Kaithavalappil v. the State of Kerala

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